D. 28 - On marital consent

After the Master shows that consent is the efficient cause of marriage, here he shows what kind of consent it must be that brings about marriage. This is divided into two parts: in the first part, he inquires whether consent by words about the future, confirmed by an oath, brings about a marriage; in the second, he shows what the consent is that does cause marriage, at: here it is asked, since present consent makes a marriage, concerning what thing is that consent given. (Sententiae IV, 28.3 (175). 1.)

Concerning the first he does two things: first, he determines the truth; second, he objects to the contrary, at: that is said above seems to be contradicted by what the laws set down. (Sent. IV, 28.1 (173). 3.)

And concerning this he does two things: first, he objects against what was immediately determined; second, against what was held in the previous distinction, and there he says: what Pope Evaristus says also seems to be contrary to that sentence by which it was said that consent alone makes a marriage, (Sent. IV, 28.1 (173). 4.) and both are divided into objection and solution, as is clear from the text.

Question 1

The consent that causes marriage

Here four questions arise:

first, whether an oath accompanying the consent expressed in terms of the future causes marriage;

• second, whether physical intimacy accompanying it causes marriage;
• third, whether secret consent in terms of the present suffices to cause a marriage;
• fourth, what the consent that makes marriage consists in.
• Article 1 Whether an oath accompanying the consent expressed in terms of the future causes marriage

Obj. 1: To the first question, we proceed thus. It seems that an oath added to consent in terms of the future causes marriage. For no one can oblige himself to do something against divine law. But to fulfill an oath is of divine law, as is clear from Matthew 5:33: yet render to the Lord your oaths. Therefore, no subsequent obligation can make it so that a man should not fulfill an oath he made before. If, then, after consenting to some woman in terms of the future confirmed by an oath, someone should oblige himself in terms of the present, it seems that nevertheless he must keep the first oath. But this would not be the case unless by that oath the marriage were completed. Therefore, an oath joined to consent about the future causes marriage.

Obj. 2: Furthermore, divine truth is stronger than human truth. But through an oath, something is confirmed by divine truth. Therefore, since words expressing consent in the present, in which there is only human truth, complete a marriage, it seems that much more could words of the future bring this about, if they were confirmed by an oath.

Obj. 3: Furthermore, according to the Apostle in Hebrews 6:16, the end to all controversy . . . is an oath . Therefore, at least in a law-court, more is established by an oath than by a mere word. If, therefore, someone should consent by a mere word to one woman in terms of the present, and afterward consent to another in words about the future confirmed by an oath, it seems that by the judgment of the Church he must be compelled to remain with the first woman, and not with the second.

Obj. 4: Furthermore, words about the future, uttered by themselves, make a betrothal. But an oath does something here. Therefore, it causes something more than a betrothal. But beyond the betrothal, there is nothing more except marriage. Therefore, it causes marriage.

On the contrary (1), what is still to come, is not. But the addition of an oath does not change the fact that terms of the future signify consent about the future. Consequently, there is no marriage yet.

Furthermore (2), after the marriage has been completed, no other consent is necessary for the marriage. But after an oath, some consent does have to happen, which brings about the marriage; otherwise it would be pointless to swear that it would be in the future. Therefore, it does not make a marriage.

I answer that, an oath is employed for the confirmation of a statement; and so it only confirms what is signified in the statement, and does not change what is signified. And thus since words concerning the future are by their very meaning incapable of causing marriage, since what is promised in the future is not done yet, even if an oath should occur, the marriage is not enacted yet, as the Master says in the text.

Reply Obj. 1: Fulfilling a licit oath belongs to divine law, but not fulfilling an illicit one. And so, if some obligation occurring after an oath should make it to be illicit, when before it had been licit, it does not go against divine law if someone does not keep the oath made previously; and this is how it is in the case proposed. For what is sworn illicitly is promised illicitly, but a promise of what belongs to someone else is illicit. For this reason, the consent resulting from terms of the present, by which someone transfers mastery over his own body to another, makes the preceding oath illicit, which beforehand had been licit.

Reply Obj. 2: Divine truth is most efficacious for strengthening that to which it is applied.

therefore the answer to the third is clear.

Reply Obj. 4: An oath’s effect is not to make a new obligation, but to confirm the one already made; and thus someone sins more gravely who violates that obligation.

Article 2

Whether physical intimacy accompanying it causes marriage

Obj. 1: To the second question, we proceed thus. (Parallel: Quodl. V, q. 8, a. 1.) It seems that physical intimacy after consent expressed in terms of the future makes marriage. For consenting in deed is greater than consenting in word. But that man who commingles sexually consents by his deed to the promise that he made beforehand. Therefore, it seems that a marriage is made much more by this than if consent were given only by words about the present.

Obj. 2: Furthermore, not only consent expressed, but also consent understood causes marriage. But there can be no greater indicator of consent than physical intimacy. Therefore, by this a marriage is accomplished.

Obj. 3: Furthermore, every physical union outside of marriage is a sin. But a woman does not seem to sin if she admits her betrothed to physical intimacy. Therefore, marriage is brought about by this.

Obj. 4: Furthermore, a sin is not forgiven unless something is restored that was taken away. But someone cannot restore what was taken away from a woman who was deflowered under the pretext of marriage, unless he takes her in marriage. Therefore, it seems that even if after physical intimacy with one woman, he has contracted in terms of the present with another, he is bound to return to the first; which would not be the case unless a marriage existed between them. Therefore, physical intimacy after consent about the future causes marriage.

On the contrary (1), Pope Nicholas says: if consent was lacking at the wedding, all the other celebrations, even with coition itself, are in vain. (Gratian, Decretals, pt. 2, cause 27, q. 2, ch. 2 (PL 187:1392).)

Furthermore (2), what is consequent upon something does not bring it about. But physical intimacy follows marriage, as effect follows cause. Therefore, it cannot cause marriage.

I answer that, we can speak of marriage in two ways. In one way, as to the forum of conscience; and thus in the truth of reality, physical intimacy is not capable of making a marriage complete whose previous betrothal took place in terms of the future, if internal consent is lacking: for even words expressing consent in the present, if mental consent were lacking, would not cause marriage, as was said above. But as to the judgment of the Church it is otherwise; and because in external judgment things are judged according to what is outwardly apparent, since nothing can more expressly signify consent than physical intercourse, according to the judgment of the Church, physical intercourse following upon betrothal is judged to cause a marriage, unless other signs appear indicative of fraud or deceit.

Reply Obj. 1: That man who mingles sexually consents to physical intimacy by his act according to the truth of the matter. But he does not consent to marriage by this fact alone, except according to the interpretation of the law.

Reply Obj. 2: That indicator does not change the truth of the matter, but the judgment which is made of matters externally.

Reply Obj. 3: If a betrothed woman receives her bridegroom, believing that he wants to consummate the marriage, she is excused from sin, unless other signs indicating fraud should appear; if, for example, there are a number of conditions separating them, like nobility of birth, or fortune, or another clear sign that might appear. But the bridegroom, on the other hand, sins both by fornicating and (what is more) by the fraud that he commits.

Reply Obj. 4: In such a case, before the bridegroom has married the other, he is bound to take the first woman as his wife, if they are of equal condition, or if the bride is of a better condition. But if he has married another, he has now become powerless to fulfill what he is bound to; and thus it suffices if he should provide for her marrying. And some people say that the bridegroom is not even bound to this, if he is of a much better condition, or if there was some evident sign of fraud: for it can be probably presumed that the bride was not deceived but pretended that she was deceived.

Article 3

Whether secret consent in terms of the present suffices to cause a marriage

Obj. 1: To the third question, we proceed thus. (Parallel: In IV Sent. d. 28, expos. text.) It seems that consent made in secret in terms of the present does not cause marriage. For a thing existing in the power of one person is not transferred to the power of another unless by the consent of the one in whose power it was. But the girl was in the power of her father. Therefore, she cannot by marriage pass over into the power of a husband, unless her father consents. And thus, if consent happens in secret, even expressed in terms of the present, there will not be a marriage.

Obj. 2: Furthermore, just as in marriage our act is like the essence of the sacrament, so also in penance. But the sacrament of penance is not perfected unless through the mediation of the Church’s ministers, who are the ones who dispense the sacraments. Therefore, neither can marriage be completed in secret without the priestly blessing.

Obj. 3: Furthermore, baptism, which can happen in secret and in public, is not prohibited by the Church from happening in secret. But the Church prohibits clandestine marriages. Therefore, they cannot happen in secret.

Obj. 4: Furthermore, between persons who are related in the second degree, no marriage can be contracted, since the Church prohibits it. But likewise the Church prohibits clandestine marriages. Therefore, these cannot be valid marriages.

On the contrary (1), where the cause happens, the effect happens. But the efficient cause of marriage is consent expressed in terms of the present. (The Parma ed. contains the phrase “per verba de praesenti expressus”; the Vives ed. omits it, noting that certain old editions have it.) Therefore, whether it be done in public or in secret, a marriage results.

Furthermore (2), wherever there is the due form and the due matter, there is a sacrament. But in a secret marriage, the due matter is preserved, for they are persons legally capable of contracting, and the due form, because there are words expressing consent in the present. Therefore, there is a valid marriage.

I answer that, just as in other sacraments certain things belong to the essence of the sacrament, and if omitted, the sacrament would not exist, but certain others belong to the solemnity of the sacrament, and if omitted the sacrament would be validly completed, although it would be a sin for the one who made the omission; so too, consent expressed in terms of the present between persons legally capable of contracting causes marriage: for these two things are of the essence of the sacrament; but other things belong to the solemnization of the sacrament, since they are employed so that marriage may be done fittingly. And thus if they are omitted, it is a valid marriage, although they would sin by contracting it, unless they were excused by some legitimate reason.

Reply Obj. 1: A girl is not in the power of her father like a slave-girl, so that she does not have power over her own body, but like a daughter to be educated; and thus in keeping with the fact that she is free, she can give herself into the power of another without the consent of her father, as also any man or woman may enter religious life without the consent of parents, since he or she is a free person.

Reply Obj. 2: Our act in penance, although it is of the essence of the sacrament, is still not sufficient for bringing about the proximate effect of the sacrament, namely, absolution from sins; and thus it is necessary that an act of the priest occur for the perfection of the sacrament. But in marriage our acts are the sufficient cause for bringing about the proximate effect, which is the obligation, for anyone who is his own master can oblige himself to another; and thus the blessing of the priest is not required for marriage as of the essence of the sacrament.

Reply Obj. 3: It is also prohibited that someone receive baptism not from a priest, unless in the case of necessity. But marriage is not a sacrament of necessity; and thus there is no similar reason. But clandestine marriages are prohibited because of the dangers that tend to result from them: for frequently in such matters there is some fraud on the part of one or the other; frequently also, they cross over into other unions, when they repent of what they have done so impetuously, and many other evils happen from this; and moreover, these marriages have an appearance of shame.

Reply Obj. 4: Clandestine marriages are not prohibited as being against the essential components of marriage, as marriages are prohibited between persons legally ineligible, who are improper matter for this sacrament; and thus it is not the same thing.

Article 4

What the consent that makes marriage consists in

Obj. 1: To the fourth question, we proceed thus. It seems that the consent which makes marriage is consent to physical intimacy. For as Jerome says: for those vowing virginity, it is condemnable not only to marry, but even to want to marry. (The Vives ed. notes that this saying is found not in Jerome but in Augustine, On the Good of Widowhood, ch. 9, par. 12: “in uiduali et uirginali continentia excellentia muneris amplioris expetitur: qua expetita et electa et uoti debito oblata iam non solum capessere nuptias, sed etiamsi non nubatur, nubere uelle damnabile est” (CSEL 41:317).) But it would not be condemnable unless it were contrary to virginity, to which marriage only opposed by reason of physical intimacy. Therefore, the consent of the will that there is in a wedding is consent to physical intimacy.

Obj. 2: Furthermore, all those things that are in marriage between a man and a woman can exist licitly between a brother and sister, except for physical intimacy. But marital consent cannot exist licitly between them. Therefore, marital consent is consent to physical intimacy.

Obj. 3: Furthermore, if a woman should say to a man, I consent to you provided that you will not know me, it is not marital consent: for there is something here that is contrary to the substance of the aforementioned consent. But that would not be unless the consent uttered were consent to physical intimacy.

Obj. 4: Furthermore, the beginning in anything corresponds to the consummation. But marriage is consummated by physical intimacy. Therefore, since it is begun by consent, it seems that the consent is to physical intimacy.

On the contrary (1), no one who consents to physical intimacy is a virgin in mind and body. But blessed John the Evangelist was a virgin in mind and body after his marital consent. (Cf. Jacobus de Voragine, The Golden Legend, ch. 9 (Ryan ed., 1:50), which says that “he had thought of marrying but instead was called by the Lord.”) Therefore, he did not consent to physical intimacy.

Furthermore (2), the effect corresponds to the cause. But consent is the cause of marriage. Therefore, since physical intimacy is not of the essence of marriage, it seems that the consent which causes matrimony is not consent to physical intimacy.

I answer that, the consent that makes marriage is consent to marriage, for the proper effect of the will is the very thing willed. For this reason the consent that causes marriage is related to physical intimacy in just the same way that phsical intimacy is related to marriage. But marriage, as was said above, is not essentially carnal union itself, but a certain association of a man and a woman ordered to physical intimacy and other things that pertain to a man and a woman as a result, according to which they give power to each other as regards physical intimacy; and this association is called conjugal union. Thus it is clear that those men spoke well who said that to consent to marriage is to consent to physical intimacy implicitly, not explicitly. For it should be understood only as an effect is implicitly contained in its cause: for the power of carnal union, to which one consents, is the cause of carnal union, as the power of using what is one’s own is the cause of its use.

Reply Obj. 1: Consent to marriage is condemnable after a vow of virginity, because by such consent power is given to what is not permitted; for example, if someone gave someone else the power to take something that had been given to him for safekeeping, he would sin, and not only in actually handing it over to him. Concerning the consent of the Blessed Virgin, however, we will speak in a little while. (See below, d. 30, q. 2.)

Reply Obj. 2: Between a brother and sister the power of having each other in physical intimacy cannot exist, as neither can physical intimacy occur licitly; and thus the argument does not follow.

Reply Obj. 3: That condition set forth is opposed not only to the act but also to the power of physical intimacy, and thus it is contrary to marriage.

Reply Obj. 4: The beginning of marriage corresponds to the consummation, as a habit or power corresponds to the act which is its activity.

The arguments to the contrary show that consent is not explicitly given to physical intimacy, and this is true.

Exposition of the Text

Without which marriage is lawfully done as to its effect, but not as to the honor of the sacrament. (Sententiae IV, 28.2 (174). 1.) On the contrary, in the second marriage there is no blessing of the priest, and yet it has the honor of matrimony. And it must be said that the honor of matrimony is not there as regards the perfect signification of marriage; and so, because of a defect of the sacrament, the blessing is omitted.

Consent which is expressed in secret does not make a marriage inviolable. (Sent. IV, 28.2 (174). 2.) This is understood as regards the judgment of the Church, but as regards the judgment of conscience, consent alone does make marriage firm.

She was not formed either from the highest part, nor from the lowest, but from the side of man. (Sent. IV, 28.4 (176). 1.) She seems to have been taken from the most excellent place: for the heart is the most important of the members, and the ribs are right beside it. And it must be said that the heart is the most noble as regards the origin of life, but the head as to the full complement of those powers through which there occur movement and sense, in which the sensitive life consists.